22.04.2009 | "Enforcement The Prevailing IP Trade Policy Priority For EU, US" by William New

"Enforcement The Prevailing IP Trade Policy Priority For EU, US" by William New

Protection and enforcement of intellectual property rights is emerging as the dominant priority in international trade policy for the European Union and United States, based on communications from trade officials and others. Stimulating innovation also has a significant role.

The prevailing perception is that their intellectual property rights represent a significant – and sometimes the only - competitive advantage they have in negotiations with trading partners. These views were parlayed to the annual Fordham University Intellectual Property Law and Policy conference, held 14-15 April in Cambridge, England.

The United States, with new leadership, appears to be continuing the strong enforcement focus of the previous administration. But some key IP officials have yet to be named and some questions remain on IP policy.

The European Union is due to change leadership at year’s end but has crafted a consistently strong approach to IP enforcement.

“IP has definitely become a top priority of the EU trade policy [agenda],” one speaker said last week. “It’s a story that will not go away. It is with some countries our only competitive advantage.”

Both governments are focussed on raising protection levels in other countries for their industries’ IP rights through bilateral and regional trade agreements. They also are actively working to accomplish this through as many other channels as possible. These include fighting counterfeit products through the World Health Organization and World Customs Organization, and also through the Anti-Counterfeiting Trade Agreement (ACTA).

But some venues, like the World Trade Organization and the World Intellectual Property Organization, are seen as politically blocked from discussing enforcement substantively by some of their membership who fear any policymaking will not be balanced for developing countries.

Governments have gone on the defensive with regard to their efforts to protect their domestic industries’ rights through trade deals. “We understand the frustration of industry,” said one official. “But Rome wasn’t built in a day.”

Meanwhile, levels of enforcement above that obtained in the multilateral WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) continue to be pursued, including in bilateral investment agreements, through a steady stream of domestic legislation and through bilateral trade talks.

New US Trade Representative Ron Kirk signalled early the recognition that IP is a key competitive advantage, an official said, adding, “IP-intensive industries need strong commitments from our trading partners and we will work on that.” Kirk has flagged an emphasis on an international infrastructure of creativity and innovation, the official said.

Already, the new administration has engaged in IP issues at the WTO TRIPS Council, and bilaterally with Russia, China, the European Union, Japan, Saudi Arabia, as well as Canada and Mexico and through trade and investment agreements. The US Patent and Trademark Office and other US agencies also are continuing their intensive capacity-building efforts in IP enforcement. To date, they have been involved in the training of as many as 80,000 people, an official said.

The Obama administration hopes to be more open to a wider range of stakeholders such as nongovernmental organisations, an official said.

The EU has a number of initiatives as well, such as the launch in recent weeks of an “observatory” for collecting, analysing and presenting data on counterfeiting and piracy, in part to help bring about a “change in mindset” among EU policymakers on these issues, an official said.

The EU also has a strong interest in protecting its geographical indications, products whose names derive from places and particular characteristics.

EU IP “Tsar”?

The European Commission is under pressure from industry to consider creating a position of “IP tsar” like the United States has done and is about to fill. But the Commission appears to see little need at this time, choosing instead to focus on better communication between existing layers rather than add another.

The Commission also is showing signs of sympathy to the pharmaceutical industry objection to its preliminary study that found drug companies using patents to suppress competition from lower-priced generics. The Commission is consulting before the final version of the study comes out.

There also has been some talk of reopening the EU Copyright Directive, for instance to introduce the “fair use” doctrine as in the United States. The copyright industry seems generally opposed to reopening of the EU directive, and may see the current fight over proposed extension of copyright protection for producers and performers as indicative of the struggle that would ensue if opened.

Commission officials may call for more flexibility to work outside the legislative process involving the increasing number of member countries to find solutions to IP concerns. It was estimated that it takes about 6 years for legislation to move from inception to implementation.

Some in the Commission hold that stakeholder dialogue, while encouraged, will not replace legislation in all cases, and that transparency calls for policy to be made in the open rather than in a closed room with stakeholders.